Every year, the Federal Government concludes numerous international treaties on a wide range of subjects, from cooperation in the field of security to climate change mitigation. The Federal Ministry of the Interior negotiates and concludes many international treaties with other countries and international organisations. As part of its responsibility for upholding Germany’s constitution, the Federal Ministry is also involved in negotiating and concluding international treaties and agreements on behalf of the Federal Government, other federal ministries and the federal states.

In this age of globalisation, the number of forums for addressing international problems is growing, while the number and complexity of the agreements they draw up to solve these problems are growing as well. That is why the task of ensuring democratic involvement at the conclusion of such agreements, as advised by constitutional law, is becoming more and more challenging. The Federal Ministry of the Interior provides assistance and advising in the process of negotiating international treaties and non-binding agreements. The Federal Ministry also checks to make sure that the draft treaties comply with constitutional law. In other words, no international treaties can be concluded without the approval of the Federal Ministry of the Interior.

Determining the need for ratifying legislation

The Federal Ministry of Justice and the Federal Ministry of the Interior together have lead responsibility for the constitutional review pursuant to Article 59 of the Basic Law. According to this article, all international treaties concluded by the Federal Government and federal ministries must be examined in particular to determine whether the treaty must be ratified by law in order to apply within Germany. If so, the international treaty has the legal status of a federal law once it is ratified.

International treaties that do not fulfil the conditions of Article 59 (2) sentence 1 of the Basic Law do not need ratifying legislation, but they have the status of administrative agreements in Germany’s legal system and must be abided by. International treaties of the European Union do not require ratifying legislation. They are subject to Union law and apply directly in German law.

The usual legislative procedure applies to ratifying legislation. Depending on the content of the treaty, ratifying legislation may require the consent of the Bundesrat. For every international human rights treaty which the Federal Republic of Germany acceded to, ratifying legislation was passed and published in the Federal Law Gazette. If concluding an international treaty means that German law needs to be amended, another law, known as an implementing act, must be enacted for this purpose.

The issue of ratifying legislation and the German Bundestag’s right to participate has assumed greater political importance in recent years, for example with regard to complex economic agreements. The Federal Constitutional Court too has increasingly faced fundamental questions concerning Article 59 of the Basic Law.

International agreements by the federal states

Furthermore, according to Article 32 of the Basic Law, all international agreements made by the federal states with foreign countries require the prior consent of the Federal Government. These agreements too must be reviewed in advance by the Federal Ministry of the Interior and the Federal Ministry of Justice. In this case, the decisive issue is whether the federal state has the necessary power to legislate.